McIntosh v. Metro Aluminum Products Ltd & Zbigniew Augustynowicz

Question(s) to be Determined:Whether Mr. Augustynowicz’s repeated textual communication with Ms. McIntosh constituted a form of harassment.

Findings: The Tribunal explained that sexual harassment might be blatant as in grabbing, leering and sexual assault, but it might also be subtle and may include innuendos and propositions. Since, in this situation, the sexual innuendo was overt, the only real issue to be determined was whether the messages were unwelcome. Based on credibility and the evidentiary record, the Tribunal found that the messages were indeed unwelcome and therefore that the repeated text messages did constitute sexual harassment.

Reasoning: The Tribunal found Augustynowicz sexually harassed McIntosh largely because of the nature of the evidence that results from text messaging. That is, the complainant did not have any difficulty in demonstrating that there was communication of a sexual nature or that the messages were demeaning, because they were all written down. Further, there was a clear record that McIntosh had asked Augustynowicz to stop sending sexual messages on several occasions, and that these requests were followed by additional sexual messages.

Summary:Company and owner held liable for $30,000 in damages due to owner’s ‘textual harassment’ of female employee. In this case Mr. Augustynowicz and Ms. McIntosh had consentingly entered into a sexual relationship. However, when that relationship ended, and she communicated to him that she no longer wanted to engage in communications or conduct of a sexual nature, Mr. Augustynowicz had a legal responsibility to ensure that he ceased such communications and that the breakdown of their sexual relationship did not negatively impact Ms. McIntosh’s working environment. Yet Mr. Augustynowicz continued to subject Ms. McIntosh to repeated comments of a sexual nature that Mr. Augustynowicz knew, or ought to have known, were unwelcome, and that detrimentally affected her work environment and led to adverse job-related consequences, including her departure from Metro. In conclusion, Ms. McIntosh’s departure from Metro was deemed to be due to the sexual harassment.

Lisa McIntosh filed a complaint against Metro Aluminum Products Ltd. (“Metro”) and Zbigniew Augustynowicz (collectively the “Respondents”), alleging discrimination in employment based on sex (sexual harassment), contrary to s. 13 of the Human Rights Code. Specifically, she says that she was subjected to ongoing sexual harassment through unwanted text messages from Mr. Augustynowicz between June 27 and September 22, 2008, which ultimately caused her to leave her position.

The Report included several messages where Ms. McIntosh asked Mr. Augustynowicz to stop “treating her that way.” For example, an undated message read:• “Zbig, I told you that I was not going to talk to you anymore outside of work until you apologize to me for the way you have been treating me, and you have not even bothered to make an attempt and yet you continue to call me a bitch 6 times in fact. I will not be treated that way. So when you are ready to talk and apologize then I will talk to you.”

Despite these requests, Ms. McIntosh continued to receive text messages from Mr. Augustynowicz, containing comments such as “still being a bitch”; “hi sexy”; “you will be single”; “now I know why you are single”, “how about a bj”; “still acting like a bitch”; “I said, don’t act like a bitch”; “don’t be a woman”; “R u ready to start being nice”; “any horny girlfriends”; and “still hate me”.

The Respondents deny any discriminatory conduct. They do not deny the specific text messages, but say the text messages did not constitute sexual harassment or any other form of discrimination. They say that Ms. McIntosh consented to, and participated in, all such communications, and that she sent similar text messages to Mr. Augustynowicz. They also say that Mr. Augustynowicz ceased texting Ms. McIntosh when she requested him to do so.

I have concluded that Ms. McIntosh has proven that she was subjected to sexual harassment in her employment at Metro by Mr. Augustynowicz, its owner. As the owner of Metro, and Ms. McIntosh’s employer, Mr. Augustynowicz was in a position of authority over her. He was responsible for the terms and conditions of her employment and for ensuring that she was employed in a workplace free of sexual harassment. He failed in this responsibility. He repeatedly referred to Ms. McIntosh in a sexually demeaning manner in his communications to her. He knew, or ought to have known, that his sexual comments and propositions were offensive, inappropriate, and unlawful in an employment context. As consenting adults, Mr. Augustynowicz and Ms. McIntosh were entitled to enter into a sexual relationship, however ill-advised it might be in a workplace given their respective positions. However, once that relationship ended, and she communicated to him that she no longer wanted to engage in communications or conduct of a sexual nature, Mr. Augustynowicz had a legal responsibility to ensure that he ceased such communications and that the breakdown of their sexual relationship did not negatively impact Ms. McIntosh’s working environment.After considering all the circumstances, including the overall context, tenor and content of the text messages, I find that Ms. McIntosh has proven that she was subjected to repeated comments of a sexual nature that Mr. Augustynowicz knew, or ought to have known, were unwelcome, and that detrimentally affected her work environment and led to adverse job-related consequences, including her departure from Metro. I accept that Mr. Fitzgerald replaced Ms. McIntosh after she left on sick leave, and that her departure from Metro was due to the sexual harassment.